Plea in SC for power to president, governors to disqualify Parliament members

New Delhi, June 19 (IANS): A PIL has been filed in the Supreme Court seeking directions to vest in the President and Governors powers to disqualify a sitting member of Parliament or state Assembly under anti-defection law after consulting the Election Commission (EC).
Seeking to strip the Speaker and the Chairperson of their power to disqualify a sitting member under the tenth schedule of the Constitution, petitioner Ashwini Kumar Upadhyay has contended that the impartiality of the presiding officers on account of their past political allegiances is always under question.
Pointing to the “apprehensions” about the alleged “partisan nature of the Speaker’s decision”, the petitioner advocate said: “Since Speakers are party members, they should not be burdened with the job of pronouncing on the membership of their fellow members.”

Mentioning that motives would be attributed whichever way the presiding officers decide on a plea for disqualification under anti-defection law (the tenth schedule), the recently-filed plea contended that the prevailing system was against the “basic dictum of democracy and free and fair election in spirit of the Constitution’s Articles 14, 19 and 324”.

“It would be unrealistic to expect a Speaker to completely abjure party considerations while deciding on matters under the tenth schedule,” the plea said.
The Constitution’s tenth schedule spells out the provisions for the disqualification of members on grounds of defection under Article 102(2) from either House of the Parliament and Article 191(2) from the state Assembly or the legislative council.

The petitioner, who is also a leader of the ruling BJP, referred to the reports of the Goswami Committee on Electoral Reform, EC’s proposed electoral reforms, and the Law Commission’s 255th report in support of his plea.
Coupled with this, the petitioner referred to the judgments of the top court wherein it has held that the decision of the Speaker or Chairperson to disqualify a sitting member was subject to judicial scrutiny under the Constitution’s Article 32, 226 and 136.

The top court had said that the Speaker or Chairperson were discharging quasi-judicial functions when deciding the question whether a member of the House has attracted disqualification on the grounds of defection, thus their decisions are subject to judicial review.

Article 32 provides for the right to constitutional remedies for the enforcement of fundamental rights, Article 226 empowers the high courts to issue directions or orders or writs for the enforcement of the fundamental rights and Article 136 provides for special leave to appeal by the Supreme Court.

Upadhyay also referred to the judgment of former Lok Sabha Speaker Shivraj Patil in a defection case involving the members of erstwhile Janata Dal wherein the then Speaker said: “Since Speakers in India are, after all, party members, they should not be burdened with the job of pronouncing on the membership of their fellow members. Whatever they decide, motives would be imputed to them.”

Even the Goswami Committee recommended that the anti-defection law be changed to provide that the “power of deciding legal issue of disqualification should not be left to the Speaker or Chairman of the House, but to the President or the Governor, as the case maybe who shall act on the advice of the EC, to whom the question should be referred for determination as in the case of any other post-election disqualification of a member”.